People v. Hatt

• Decision Date: 07 February 2018
• Docket Number: 2d Crim. No. B283463
• Citation: 228 Cal.Rptr.3d 871,20 Cal.App.5th 321
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. George Donald HATT, Defendant and Appellant.

20 Cal.App.5th 321

228 Cal.Rptr.3d 871

The PEOPLE, Plaintiff and Respondent,

v.George Donald HATT, Defendant and Appellant.

2d Crim. No. B283463

Court of Appeal, Second District, Division 6, California.

Filed February 7, 2018

Todd W. Howeth, Public Defender, William Quest, Senior Deputy Public Defender, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

TANGEMAN, J.

In November 2014, voters enacted Proposition 47 to "reduce [ ] the penalties for certain drug- and theft-related offenses and [to] reclassif[y] those offenses as misdemeanors rather than felonies. [Citations.]" ( People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1182, 202 Cal.Rptr.3d 525 ( Zamarripa ).) Proposition 47 also added section 1170.18 to the Penal Code,¹ which permits a person who has completed the sentence for an eligible felony conviction to apply to have the conviction redesignated a misdemeanor. ( Ibid. ; see § 1170.18, subd. (f).) If the applicant meets specified criteria, and has not suffered a disqualifying prior conviction, the trial court must redesignate the offense. ( § 1170.18, subds. (g) & (i).)

"The question presented by this case is, ‘Prior to what?’ " ( People v. Montgomery (2016) 247 Cal.App.4th 1385, 1387, 203 Cal.Rptr.3d 228 ( Montgomery ).) We hold that a person who suffers a disqualifying conviction after filing a redesignation application but prior to the trial court's ruling on that application is barred from relief under section 1170.18.

FACTUAL AND PROCEDURAL HISTORY

In October 2003, George Donald Hatt pled guilty to possession of methamphetamine,then a felony. ( Health & Saf. Code, § 11377, subd. (a).) The trial court sentenced him to three years in state prison.

In May 2016, while a murder charge was pending against him in Washington, Hatt filed an application to have his methamphetamine possession conviction redesignated a misdemeanor. ( § 1170.18, subd. (f).) The prosecution opposed the application because of Hatt's pending murder charge.² The trial court tentatively denied the application in August 2016.

The prosecution then moved to continue the hearing on Hatt's application until the resolution of the murder case, which was expected to go to trial in February 2017. The trial court granted the continuance. It set the hearing for March, and later continued the case to June. At the June hearing the prosecutor informed the court that the Washington jury found Hatt guilty of murder. The court then denied Hatt's application.

DISCUSSION

The August 2016 "ruling"

Hatt first contends the trial court erred when, in August 2016, it "denied" his application based on his pending murder case. We disagree.

A tentative ruling is, by definition, not final. ( People v. Von Villas (1992) 11 Cal.App.4th 175, 241, 15 Cal.Rptr.2d 112.) Whether a ruling is tentative "turns on whether the court has finished its consideration of [an] issue." ( People v. Ennis (2010) 190 Cal.App.4th 721, 736, 118 Cal.Rptr.3d 270, italics omitted.) Here, the trial court had not finished its consideration of Hatt's application when it issued the tentative denial in August 2016: It did not enter a final order into the minutes, but rather solicited briefing and continued the case. Because the court's August 2016 ruling was not final, the issue is not properly before us.³ ( In re Anthony H. (1982) 138 Cal.App.3d 159, 165-166, 187 Cal.Rptr. 820 [where court issues ruling but invites briefing, states it will reserve final decision, and then issues subsequent order, original ruling is deemed tentative].)

The continuances

Hatt next contends the trial court abused its discretion when it continued the hearing on his application until after the conclusion of his murder case. We again disagree.⁴

"Continuances shall be granted only upon a showing of good cause." (§ 1050, subd. (e).) To determine whether good cause for a continuance exists, a trial court "must consider ‘ " ‘not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’ " ' [Citation.]" ( People v. Doolin (2009) 45 Cal.4th 390, 450, 87 Cal.Rptr.3d 209, 198 P.3d 11 ( Doolin ).) The court should also consider whether a continuance would be "useful." ( People v. Beeler (1995) 9 Cal.4th 953, 1003, 39 Cal.Rptr.2d 607, 891 P.2d 153 ( Beeler ), abrogated on another ground as recognized in People v. Edwards (2013) 57 Cal.4th 658, 705, 161 Cal.Rptr.3d 191, 306 P.3d 1049.) "[T]o demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time." ( Ibid. ) "Whether good cause exists is a question for the trial court's discretion. [Citation.]" ( Doolin , at p. 450, 87 Cal.Rptr.3d 209, 198 P.3d 11.) The grant or denial of a continuance is " ‘seldom successfully attacked.’ [Citation.]" ( Beeler , at p. 1003, 39 Cal.Rptr.2d 607, 891 P.2d 153.)

Good cause for the continuances was shown here. First, the trial court accomplished substantial justice by continuing the hearing. ( Doolin , supra , 45 Cal.4th at p. 450, 87 Cal.Rptr.3d 209, 198 P.3d 11.) To " ‘[e]nsure that people convicted of murder, rape, and child molestation will not benefit from’ " Proposition 47's redesignation provisions, section 1170.18 includes "a general disqualification [that applies] regardless of when a defendant was convicted of the disqualifying offense." ( Zamarripa , supra , 247 Cal.App.4th at pp. 1182, 1184, 202 Cal.Rptr.3d 525 ; see also People v. Walker (2016) 5 Cal.App.5th 872, 876-877, 210 Cal.Rptr.3d 202 ( Walker ) [discussing additional authority]; Montgomery , supra , 247 Cal.App.4th at pp. 1390-1391, 203 Cal.Rptr.3d 228 [same].) Had the court denied the continuances here, it would have thwarted this purpose because it could not have denied Hatt's application despite the pending murder charge. By granting the continuances, the court acceded to voters' wishes to make certain that a convicted murderer could not take advantage of section 1170.18. (Cf. In re Cook (1944) 67 Cal.App.2d 20, 24-25, 153 P.2d 578 [substantial justice to carry out the intent of the Legislature].)

Second, the continuances were useful. ( Beeler , supra , 9 Cal.4th at p. 1003, 39 Cal.Rptr.2d 607, 891 P.2d 153.) The evidence necessitating the continuances—whether Hatt had committed a disqualifying act—was material to his redesignation application. And the prosecution provided the trial court with a reasonable timeline of when the evidence could be obtained: The prosecutor informed the court when Hatt's trial was scheduled to start, and kept it apprised of the trial's progress. The hearing on Hatt's application took place one week after the jury returned its guilty verdict. ( Arnold v. Superior Court (1971) 16 Cal.App.3d 984, 987, 94 Cal.Rptr. 589 [continuance upheld when trial delayed due to pendency of related proceeding].)

Hatt's claim that the trial court abused its discretion because it misunderstood the law is not persuasive. When the court continued the hearing on Hatt's application, two published opinions— Montgomery and Zamarripa —had interpreted the phrase "prior conviction" for purposes of section 1170.18, subdivision (i). Both cases define "prior conviction" as one that occurred before the filing of the redesignation application. ( Montgomery , supra , 247 Cal.App.4th at p. 1391, 203 Cal.Rptr.3d 228 ; Zamarripa , supra , 247 Cal.App.4th at p. 1184, 202 Cal.Rptr.3d 525.) Under this definition, Hatt claims he was eligible for relief since he had not been convicted at the time of his application.

But both the Montgomery and Zamarripa defendants filed their redesignation applications after they suffered disqualifying convictions. ( Montgomery , supra , 247 Cal.App.4th at p. 1388, 203 Cal.Rptr.3d 228 ; Zamarripa , supra , 247 Cal.App.4th at p. 1182, 202 Cal.Rptr.3d 525.) Neither case considered the issue presented here: whether a defendant who has a disqualifying case pending at the time of filing an application, which becomes a disqualifying conviction before the trial court rules on the application, is barred from relief. A case is not authority for a proposition not considered. ( People v. Casper (2004) 33 Cal.4th 38, 43, 14 Cal.Rptr.3d 43, 90 P.3d 1203.) There was no abuse of discretion in continuing the hearing on Hatt's application.

The June 2017 ruling

Hatt contends that, even if the trial court did not abuse its discretion by continuing the hearing, it erred when it denied his application because it misinterpreted the phrase "prior conviction" in section 1170.18, subdivision (i). We disagree.

"When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure." ( People v. Superior Court (Pearson ) (2010) 48 Cal.4th 564, 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.) We independently review matters of statutory construction. ( People v. Tran (2015) 61 Cal.4th 1160, 1166, 191 Cal.Rptr.3d 251, 354 P.3d 148.)

Like the courts considering the issue before us, we deem the phrase "prior conviction" ambiguous, and turn to indicia of the voters'...